More, Robert E.

English

University of Denver

Denver Law Review Volume 8 Issue 7 Article 2 July 2021 The Attractive Nuisance Doctrine Robert E. More Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Robert E. More, The Attractive Nuisance Doctrine, 8 Dicta 3 (1930-1931). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. DICTAVol. VIII MAY, 1931 No. 7THE ATTRACTIVE NUISANCE DOCTRINEBy Robert E. More of the Denver Barc/ LTHOUGH there are earlier cases bearing on the"Attractive Nuisance" Doctrine, there was little directC discussion of it before 1870, and it is probable thatthe general interest of the profession in the question was firstexcited by the decision of the United States Supreme Courtin 1873 in Sioux City, etc., R. R. Co. v. Stout.'In other countries the question has not received as muchjudicial discussion as in the United States. Various Englishcases have been cited in the American courts, but none ofthem appears to be a direct decision. Thus Lynch v. Nurdin'is often referred to as being in support of the doctrine of theStout case. In the English case, a man left his horse andcart unattended in a public street. A child got upon the cartin play and was hurt. The owner was held liable. Therethe alleged "attractive" chattels were left in a public placewhere the plaintiff and the defendant "had an equal right tobe." This, of course, is very different from the case wherethe owner leaves the chattel on his own land, where the childhas no right to come. The distinction is clearly pointed outby Mr. Justice Peckham in a leading New York case.' TheEnglish authorities are in confusion.'The point has been considered in the Scotch courts, butthe law there does not seem decisively settled.'In Australia the court of New South Wales favors theland owner.'The Doctrine is, therefore, not only typically American,but is chiefly developed in the American cases. The Stout2-17 Wall. 657.2-( 1841) I Q.B. 29.'-Walsh v. Fitchburg R.R. Co., 145 N. Y. 301 at 311, 312.*-See Clerk and Lindsell on Torts, 2nd Ed. 436; Bevtn on Negligence, 2nd Ed. 183-190.--- See Glegg on Reparation, 231-232; and Guthrie Smith on Damages, 144-147.-- See Patterson v. Borough of Woollahra, 16 New South Wales Law Reports-Cases of Law, 229;also Slade v. Victorian Railway, 15 Victorian Law Reports, 190.DICTAcase, as is well known, was one where a turntable owned bya railroad was left unlocked and unguarded, although it wasso located that children could be attracted to it from placeswhere they might lawfully be, and although the railroad hadactual knowledge that children had been in the habit of play-ing upon it in the past.Following the Stout case, the Supreme Court of Minne-sota in the famous case of Keffe v. Milwaukee and St. PaulR. Co. 7 fortified the Federal decision and laid down, it is sub-mitted, sounder principles for the future application of thedoctrine.Since that time, many courts have had occasion to acceptor reject in whole or in part the "attractive nuisance" doctrine.Courts of New Hampshire, Tennessee, Massachusetts andNew York have flatly refused to follow the Stout case, evenin the case of a turntable. In cases of alleged "dangerousattractions" other than turntables, decisions favorable to theland owner have been rendered in Arkansas, California, Iowa,Kansas, Louisiana, Maryland, Massachusetts, Michigan,Minnesota, Missouri, Nebraska, New Hampshire, NewJersey, New York, Pennsylvania, and Texas.A very eminent authority upon the law of Torts hasargued at length that the doctrine is unsound and should neverbe applied.'From the welter of decisions on this subject, it is some-what difficult to state definitely just what the law is. It isbelieved, however, that the four general principles to bedeveloped hereinafter are supported not only by the numericalweight of authority, but also by sound legal principles. What,then, are the essential elements of the Attractive NuisanceDoctrine as laid down in decisions by courts which supportthis theory of a landowner's liability to children?1. There is no general legal duty, either to children oradults who enter defendant's Property without invitation,express or implied, to keep dangerous things from one's landor to use care about them.-0(875) 21 Minn. 207.'-See article by Jeremiah Smith in II Harvard Lato Review, at pages 349 and 434. This articlereviews all the cases that had been decided up to the time the article was published andauthorities in support of statements heretofore made may be found at the end of Judge Smith'sdiscussion. See also an article by Manley 0. Hudson in 36 H.L.R. 836.DICTAIt is elementary that no duty is owed to trespassers, otherthan the duty not to injure them wilfully. Accordingly,where a trespasser has been injured, it is immaterial whetheror not defendant has failed to exercise due care. There beingno duty, the question of due care is never reached. Of coursedefendant cannot injure plaintiff intentionally. Traps andspring guns are within this latter category.The Supreme Court of the United States held in a recentdecision, which modified the earlier holding in the Stout caseto a considerable degree, that "infants have no greater rightto go upon other people's land than adults, and the mere factthat they are infants imposes no duty upon land owners toexpect them and prepare for them."'This fundamental principle was recognized by the Colo-rado Supreme Court in the case of Hayko v. Coal Company."°There plaintiff, a boy ten years old, entered an open roughboard shack on defendant's premises and abstracted therefroma box of dynamite caps. Plaintiff tried to pick out the con-tents of one of the caps with a pin; it exploded and blew offparts of several fingers. The plaintiff contended that theshack and caps were an attractive nuisance and that in anyevent defendant was negligent in keeping the caps wherechildren could get them. On this second proposition theCourt said:"We know of no general legal duty either to children or adults whoenter without invitation, express or implied, to keep dangerous things fromone's land or to use care about them, and yet plaintiff's argument premises sucha duty. It may be conceded, as far as this point is concerned, that I may notwilfully set a trap, e.g., a spring gun, that I owe a duty of care so as not toentrap one whom I have impliedly invited, as by a walk and steps built upto my front door, or a child whom I have tempted to trespass, and that whatwould not be a trap to an older person would be to a very young one, butthese points do not reach the plaintiff's proposition and we do not assent to it."2. The doctrine is inapplicable unless defendant know-ingly keeps upon his premises in an unguarded condition aninstrumentality that is "unusually" alluring to children.The Federal Supreme Court said in the United ZincCase supra:'-United Zinc & Chemical Co. v. Van'Britt (decided March 27, 1922) 258 U. S. 268; 42 Sup. Ct.Rep. 299; 66 Law Ed. 615 at 617."1---77 Colorado, 143.DICTA"On the other hand, the duty of one who invites another upon his land,not to lead him into a trap, is well settled, and while it is very plain thattemptation is not invitation, it may be held that knowingly to establish andexpose, unfenced, to children of an age when they follow a bait as mechanicallyas a fish, something that is certain to attract them, has the legal effect of aninvitation to them, although not to an adult. But the principle, if accepted,must be very cautiously applied."A few courts have failed to heed the admonition of theFederal Supreme Court that the doctrine "must be cautiouslyapplied". The majority of jurisdictions, however, haverecognized that the doctrine must be narrowly limited andthat great injustice will result unless the Federal SupremeCourt's admonition is heeded.This is the law in Colorado. In the Hayko case JudgeDenison said:"Courts have said and held that it is negligent to maintain on one'sown premises any agency that is dangerous and attractive to children. Thisproposition has been condemned by some courts and even ridiculed. * * *It leads to such absurdities that it is easy to ridicule it; for example, an appletree bearing green apples is such an agency. It will not do to say that everyattractive thing is sufficient to charge a defendant with negligence in enticingchildren to trespass, because there is nothing that can be said not to be attrac-tive to a child. * * * The attraction must be unusual * * * and we thinkthat, as a matter of law, a shack in a mining camp is not an unusual attraction."3. The doctrine is not applicable unless the instrumen-tality in question is so located that children can be attractedto it without first committing a trespass.It is obvious that this exceptional doctrine can have noapplicability unless the attractive, dangerous instrumentalityis so situated that children may be attracted by it when actingwithin their rights. If the child must first become a trespasserbefore he can even see the dangerous instrumentality in ques-tion, then the doctrine cannot be availed of by him.The reason for this rule is apparent. We have the basicprinciple that no duty is owed to a trespasser save to refrainfrom injuring him wilfully or by traps. Even though a de-fendant carelessly maintains upon his premises a dangerousinstrumentality he is not liable to a trespasser for the veryobvious reason that he owes no duty to one who is trespassing.Children are considered as invitees rather than trespassers,IF defendant has maintained upon his premises somethingDICTAthat is so "unusually" attractive that they are drawn to it "asmechanically as a fish is drawn to a bait." But it is obviousthat the trespass is never excused nor the invitation impliedunless the child is in fact attracted by the alluring nuisance.To put a clear case, if a ten-year-old boy climbs over the highboard fence surrounding the plant of the General ChemicalCompany near Valverde, Colorado, and then while wander-ing around is attracted to a stationary ladder on a vat of sul-phuric acid, climbs up and falls in it, it would be entirelyimmaterial that this ladder and vat were the most attractivethings in the world, to children. The child was a trespasserwhen he climbed over the fence. The ladder and vat werenot visible to him until AFTER he became a trespasser. Histrespass is not excused therefore by the attractive nuisance, asthe vat and ladder were not visible to the child when he wasat any place where he had a right to be. No implied invita-tion was extended to him to climb up the ladder. The childwas not following the figurative bait but was wilfully tres-passing upon another's property.The Supreme Court of Illinois" first announced thisqualification of the general doctrine. In the case just citedthe dangerous instrumentality was a hoist used by defendantto elevate bricks and mortar in a building under construction.Plaintiff went into the building without being attracted bythe hoist, and having thiss trespassed saw the hoist, put hishand upon it and was injured. In holding for the defendantthe Court said, at page 170:"It is a necessary element of the liability that the thing which causesthe injury is tempting to children, and constitutes a means of attracting themupon the premises, which the owner should anticipate. The dangerous thingmust be so located so as to attract them from the street or some public placewhere they may be expected to be. An owner would not be liable if hemaintained something for his own use which might be dangerous, but whichwould only be found by the children going upon his premises as trespassers."In the United Zinc Case, Supra, the Federal SupremeCourt adopted the Illinois rule.This same distinction has been made by the ColoradoSupreme Court in the Hayko Case, Supra. The Court firstheld that the shack itself was not "unusually attractive"; then"--McDermott v. Burke, 256 I1. 401; 100 N. E. 168.DICTAin answer to plaintiff's contention that dynamite caps consti-tuted an attractive nuisance, the Court pointed out that "plain-tiff could not see the box of caps till he had trespassed, there-fore, the caps cannot be classed as the attraction."4. The doctrine is not applicable unless children havebeen attracted by the nuisance before and defendant knows ofthis fact.In the United Zinc Case, Supra, Mr. Justice Holmes wasconsidering a poisonous body of water that looked clear andattractive. This body of water had not been frequented bychildren prior to this time and in holding for defendant, Mr.Justice Holmes said at page 617:"It does not appear that children were in the habit of going to theplace, so that foundation also fails."In Hardy vs. Missouri Pac. R. R. Co."2 defendant main-tained a concrete conduit, seven hundred feet long, coveringa shallow stream. The ends were open. At times defendantdischarged hot water from its boilers through this conduit.A boy twelve years old attempted to walk through this con-duit and was killed by a discharge of steam and hot water.The evidence established that children had walked throughthis conduit on at least three instances prior to the accident inquestion, but there was no evidence that defendant knew thisfact. The lower coukt directed a verdict for defendant, andthe case was heard on appeal by Judges Sanborn, Stone andMunger. In affirming the decision of the lower court, JudgeStone says :"."Nothing approaching knowledge by defendant of any passage throughthe conduit of boys at any time was shown, and such knowledge cannot beinferred nor imputed from the three trips in the course of four years shownin the evidence. Such knowledge cannot be founded upon the circumstancesthat children played about the openings of the conduit. There is no limit,except physical ability, to what a child may do."No attempt has been made to cover many of the numerousfascinating branches of this doctrine. The few principles out-lined above being sponsored by the Colorado Supreme Court,the Circuit Court of Appeals of the 8th Circuit or the Federal'2--266 Fed. 860 (C. C. A. 8th Circuit)."-At page 861.DICTA 9Supreme Court are of interest to Colorado lawyers and cqn-trolling in this state until these respective tribunals take adifferent view of the matter. It is believed that these funda-mentals will furnish a basis for deciding most attractive nuis-ance cases and are based upon sound legal principles. Mayit be hoped, therefore, that in this jurisdiction the courts willcontinue to adhere to this humane, logical and well supportedgroup of rules.

The Attractive Nuisance Doctrine

https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=6702&context=dlr

The Attractive Nuisance Doctrine

Abstract

Similar works

Full text

Available Versions

University of Denver